Jeffrey Nelson
Repairing Freedom’s Framework
Popular support for the Constitution as a mechanism capable of securing the blessings of liberty for all is on the decline. Frankly, each of our three branches of government has played a role in eroding the Constitution’s ability to maintain a nation conceived in liberty. Words like “arrogance,” “undermine,” “assault,” “trample,” even “usurp” are routinely employed by partisans Right and Left to describe a systematic approach by those in power to transform America’s constitutional order.
But the judicial branch has a particularly vital function of securing the balance of powers necessary for liberty to triumph, and so that branch’s propensity to overreach and simply dictate new law has led to an imbalance in the system as designed.
The result is a broken constitutional framework for American democracy. And what has emerged is a new pattern of government. It is the judges who rule us now. It is the Supreme Court, and not the consent of the people expressed through their elected representatives, that more often than not decides our most fundamental political questions.
The long history of power in practice teaches us that governing bodies tend to be unable to restrain themselves. Thomas Jefferson wrote that, “In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.” He was reacting to the passage of the Alien and Sedition Acts, one of our new nation’s early constitutional controversies. The “chains” represented by the Constitution were designed to restrain the power of elected and unelected federal officials so that freedom might be unleashed.
The U.S. Constitution is extraordinary in part due to its exceptional lifespan. It is the first modern constitution and it has outlived most of its successors. But history has demonstrated that when constitutional interpretation is the wholly owned province of the federal government, then federal courts will read into the Constitution reasons for ever-expanding federal power. Those courts will discover in the text (or in its “penumbra”) new powers and in so doing render the document essentially meaningless.
For most of our history law and morality have been tethered together. However cases in recent years on abortion, euthanasia, and homosexual rights have aimed straight for the heart of the moral law. In case after case, traditional morality has been the victim of a hostile judicial coup separating law from morals and making religion not the bulwark of our freedoms so much as the state’s declared enemy. An expansive conception of the equal protection of the laws is now routinely pitted against religion, what Tocqueville referred to as the “first political institution” of American democracy.
Developments like these have led conservative critics of judicial activism such as Robert Bork to assert that the Supreme Court now brings “home to us with fresh clarity what it means to be ruled by an oligarchy.” Sometimes even Supreme Court justices join the alarmed chorus. Antonin Scalia, for one, has openly wondered, “What secret knowledge…is breathed into lawyers when they become Justices of the Court?” The Courts, for him, are engaged in “designing a Constitution for a country I do not recognize.”
The prevailing idea that ours is a “living constitution,” adjusted to the times and elastic in meaning, is not serving us well. It has arguably undermined popular confidence in our political system to the point at which civil disobedience, new constitutional convention movements, and other dangerous signals that our democratic regime is imperiled will become more commonplace, and more ominous.
But a truly living constitution is a spirit of liberty and limited government that lives in the hearts of the people. Its health is sustained by a balance of power between the national government and the states, as well as between the three branches of government. Conservatives and liberals would do well to work together to re-instill popular confidence in our Constitution, still very much a model for a limited, republican government. More effective and imaginative civics education at all levels, combined with attention to the necessary pre-conditions of liberty, will certainly help citizens come alive to their constitutional birthright. This will in turn invigorate the Constitution, and aid in restoring America’s timeless framework of freedom.
Jeffrey O. Nelson is executive vice president of the Wilmington-based Intercollegiate Studies Institute